This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

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The National Post reported Wednesday that the "federal government is considering additions to the Anti-Terrorism Act that would outlaw glorifying terrorism and attending a terrorist training camp". The glorification idea, in particular, is a solution in search of a problem. In fact, it is a solution in search of years of protracted constitutional litigation. If it had merit, that might be tolerable. But it has none. Let me explain.

Tony Blair's Long Shadow

Glorification of terrorism is a crime in the United Kingdom -- one of several surprising aspects of the post-9/11 UK anti-terrorism legal renovation. It is actually an offence of "encouragement of terrorism", of which glorification is an example (s.1). So in the UK scheme, a "statement" is illegal where it is likely to be understood by some portion of the public as a direct or indirect encouragement or inducement to terrorism. The statements deemed to have this effect include every statement that "glorifies the commission or preparation (whether in the past, in the future or generally) or such acts or offences" and "from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances." "Glorification" includes "any form of praise or celebration" (s.20).

It does not matter if anything in the statement actually relates to terrorist acts or whether, in fact, any person is in fact encouraged or induced by the statement to do a terrorist act (s.1).

Tony Blair fought off resistance from his own caucus opposing these measures, and the new crime was enacted in 2006 to deal, it was urged, with militant preachers and terrorist sympathizers.

The British also became international proselytizers for the new concept and engineered UN Security Council Resolution 1624 (2005). In the preamble to latter, the Security Council condemns "in the strongest terms of the incitement of terrorist acts" and repudiates "justification or glorification...of terrorist acts that may incite further terrorist acts". In its operative paragraphs, the Security Council "calls upon" states to "prohibit by law incitement to commit a terrorist act or acts" and "prevent such conduct". More on this resolution below.

All this looked tremendously exciting to the House of Commons Sub-Committee on National Security and Public Safety, which in 2007 recommended

that the Criminal Code be amended to make it an offence to glorify terrorist activity for the purpose of emulation. Any such amendment should require the consent of the provincial attorney general to a prosecution, require the prosecution to prove that the accused intended to encourage emulation by the glorification of terrorist activity, and make available to the accused special defences similar to those included in section 319(3) of the Code [hate crime provisions].

And then the idea seemed to go away. Until now. But like many bad ideas, it seems to have legs. And so, let's see how well it stands on those legs.

Justification Based on Necessity: Failing Grade

On Wednesday, the government spokesperson defended that proposed idea as follows:

"Our government received a strong mandate from Canadians to continue making our streets and communities safer." "The proposed amendments to the Anti-terrorism Act will help us fulfill that commitment. While our government's actions have averted terrorist attacks, the threat of terrorism is still very real. We need to provide law enforcement and national security agencies with the means to anticipate and respond effectively to terrorism."

The first bit is the boilerplate the government uses to justify all its criminal law measures. But let's take it at face value: we need it to make Canada safer and to give our security service tools to do so.

But even the most cursory look at Canada's criminal law shows that Canada in 2011 is not the United Kingdom on 2006. In the UK, prior to the encouragement offence that included the reference to glorification, there were (as I understand it) relatively sparse incitement offences. Tony Blair reached very far and trenched very deeply on free speech, but he did have a point. There should be a crime of incitement. What is left is to quibble over the details.

Canada in 2011 is very different. As I write in NSL:

Section 83.22 [of the Criminal Code] makes it an offence to knowingly instruct, “directly or indirectly, any person to carry out a terrorist activity, whether or not (a) the terrorist activity is actually carried out; (b) the accused instructs a particular person to carry out the terrorist activity; (c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or (d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.” Again, this provision would capture the remote leader of a terrorist group issuing a directive through a chain of terrorist cells to the ultimate perpetrator of a terrorist activity. Roach urges, however, that “general instructions to political or religious groups or the public at large to commit a terrorist activity could fall under this new offence.”[1]

Instructing is so broad it is basically an incitement offence. Bad guys recruiting or communicating terrorist badness can be prosecuted. Tony Blair's radical preachers could almost certainly be prosecuted under this measure. And if instructing doesn't cover it off, facilitation and counselling under the Criminal Code would.

So what gap would a Canadian glorification crime fill? That would depend on its drafting, but a UK style offence could possibly capture a Tamil waving a Tamil Tiger flag and saying "Hurray for the brave fighters of the Tamil Tigers. If we were only all so noble". Or a member of the Muslim community carrying a placard reading "Celebrate the Magnificent 19 and may you join them in paradise", read as a celebration of the 9/11 hijackers. Or an environmental activist praising the worthiness of tree spiking, or the sabotage of natural gas pipelines, or some such thing.

These are not popular things to say. But should they be criminalized? Would they make our "streets and communities safer"? People do and have said them. Surely there should be some evidence that these statements cause harm before we make speech a crime. I suppose we can always hope that such evidence will be duly marshalled, but some might say that this government applies a rather "post-factual" philosophy in the area of criminal law. So the only thing we can say at present about criminalizing glorification is that it may permit the government to camouflage a dragnet: it will allow the government to prosecute sympathizers on the theory that when you're looking for a needle, maybe its better to put the whole haystack behind bars. We'll call that a North Korean approach to public safety.

The National Post article suggests that a new glorification crime "would also put Canada in compliance with a 2005 United Nations Security Council resolution that called on countries to 'prohibit by law incitement to commit terrorist acts' and to 'prevent such conduct.'"

The "Security Council made us do it" argument is a common refrain in anti-terrorism law. Various Liberal ministers went before Commons committees in relation to the original Anti-terrorism Act in 2001 and urged that Security Council Resolution 1373 obliged the measures found in the Act. That, of course, was only partially true. We certainly needed to introduce terrorism financing crimes to meet the strictures of 1373. In other respects, however, we were probably in compliance even before the Anti-terrorism Act. And 1373 didn't say anything about enhanced secrecy provisions in the Canada Evidence Act, or amendments to the Security of Information Act, that were also part of the Anti-terrorism Act. We can call all of that homegrown.

So what about this time? As noted, Resolution 1624 calls upon states to criminalize incitement. Looks impressive. But oblige anyone who tells you that this language makes criminalization of incitement mandatory to take an international law primer. Understanding whether a resolution is binding or not requires careful exegesis. The Security Council calls upon states to do an awful lot. When it does that, it is basically making recommendations. When it wants to issue mandatory resolutions, pursuant to its UN Charter powers to do so, it uses different language ("declares" being the most notable). Resolution 1624 does not oblige states to criminalize incitement. If you don't believe me, well look at the UN Office on Drugs and Crime "Manual on International Cooperation in Criminal Matters related to Terrorism": "Although resolution 1624 (2005) is not binding, it is considered a recommendation to criminalize incitement to terrorist acts."

So it's a recommendation. And actually, we have already acted on it. As noted, our instructing offence is broad enough to capture any reasonable definition of incitement. And there are also other the offences of counselling, facilitating, participation etc in terrorist activity. This, said the Canadian government in 2009, is enough for Canada to comply with Resolution 1624. Actually, this is also what we told the UN in 2006. We reviewed our rich anti-terrorism criminal law when asked about criminalizing incitement and then said "Canada is not presently considering any additional measures in this area."

So don't blame the UN for this one.

Objection One: Blowback

Ok, so the new offence would serve no purpose and isn't required by any international obligation. Now on to the downsides. The most obvious is blowback. Here's a hypothesis. If the government starts targeting the fellow with the flag or the obnoxious poster, entire communities that might sympathize with entities the government labels terrorist groups or is inclined to causes associated with terrorist acts will be alienated. When you alienate communities, intelligence and policing sources dry up. More that that, ideas don't go away. They go underground, with a new martyred status. And martyred ideas have a street credibility and cool chic. And so you attack statements, you fuel resentment, close off relationships with the authorities, create grievances and make it cool to resist.

Note to government: Refer back to the bit about safer streets and communities. Apply that objective, please.

Objection Two: Oh, the Charter

And at last we get to principle. That principle is actually found in our Charter (read: our fundamental constitutional law): freedom of speech. Sure, free speech has limits. No crying fire in a crowded theatre. And no, freedom of speech is not offended by the infamous "motive" provision in the definition of terrorist activity, because of its close link to violence in that definition. But now, in a UK style glorification offence, you're criminalizing statements that celebrate, without necessarily inducing or really being anywhere proximate to, violence. Or more specifically, statements that celebrate a particular form of violence that we condemn. Not all violence. Certain hockey commentators can breathe easy.

The latter bon mot makes a point: we celebrate violence all the time in everyday life. When does the statement cross the line to celebrate the wrong sort of violence? Which movie is too sympathetic to a disapproved cause? "Cry Freedom" in the 1980s, when some states said the ANC was a terrorist group? Which TV commentator has said too much? Which blogger or artist or protestor? When does speech now become poison? Things get Orwellian very quickly.

I could wax on about the importance of free speech as an inherent value. But let's just return to the practical argument. As summarized by Fredrick Siebert one justification of free speech is this: "let all with something to say be free to express themselves. The true and sound will survive. The false and unsound will be vanquished."

If we don't like Tamil Tiger flags and "Magnificent 19" posters, let's confront them, belittle them, mock them. Criminalize them, and you turn obnoxious ideas into the ground over which the meaning of democracy must be fought. And that, let me propose, gives them the world's biggest bandstand on which to propagate their message.

As for the inevitable hate speech analogy, call me a civil libertarian, but I don't much like hate speech crimes either. So that argument doesn't carry any persuasive value with me. See above for the reasons.